There has been recent discussion – both local and national – regarding
the use of libel and slander lawsuits to intimidate or punish those who dare to
criticize public officials. Libel is the communication of a false statement that
harms a reputation through printed words or images. Slander is the spoken
communication of a false statement that harms a reputation.

A fundamental principle of our system of government under the U.S.
Constitution is that the opportunity for free political discussion must be
maintained so that government may be responsive to the will of the people and
that changes may be obtained by lawful means. We have a profound national
commitment to debate on public issues that is uninhibited, robust, and wide-open
– debate that may well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials. So, how is this fundamental
principle of vigorous public issues debate maintained within the context of
possibly harming the reputation of a public official with a false statement? The
answer to this question is included in the landmark United States Supreme Court
case New York Times Co. v. Sullivan, 376 U.S. 254 (1964): see https://supreme.justia.com/cases/federal/us/376/254/case.html
and https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan.

The U.S. Supreme Court ruled, “A State cannot, under the First and
Fourteenth Amendments, award damages to a public official for defamatory
falsehood relating to his official conduct unless he proves ‘actual malice’
– that the statement was made with knowledge of its falsity or with reckless
disregard of whether it was true or false.” “Factual error, content
defamatory of official reputation, or both, are insufficient to warrant an award
of damages for false statements unless ‘actual malice’ – knowledge that
statements are false or in reckless disregard of the truth -- is alleged and
proved.”

The actual malice standard requires that a public official plaintiff in a
libel or slander case prove that the publisher of the statement in question knew
that the statement was false or acted in reckless disregard of its truth or
falsity. Because of the extremely high burden of proof on the plaintiff, and the
difficulty of proving the defendant's knowledge and intentions, such claims by
public officials rarely prevail. Therefore, concerned
citizens do not need to be fearful about criticizing public officials and then
being successfully sued by the public officials for libel and slander
– as long as the criticism is free of actual malice. It is also noteworthy
that Indiana has enacted statutory protections against strategic lawsuits
against public participation (SLAPP): see https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation.

A SLAPP lawsuit is intended to censor, intimidate, and silence critics by
burdening them with the cost of a legal defense until they abandon their
criticism or opposition. The Indiana Code sections
listed next have essentially made SLAPP lawsuits by public officials illegal in
Indiana by awarding attorney's fees and costs to concerned citizen defendants on
the grounds that they impede freedom of speech.

IC 34-7-7

Chapter 7. Defense in Civil Actions Against
Persons Who Act in Furtherance of the Person's Right of Petition or Free Speech
Under the Constitution of the United States or the Constitution of the State of
Indiana in Connection With a Public Issue

IC 34-7-7-5
Conditions under which rights of petition or free speech may be used as defense

Sec. 5. It is a defense in a civil action against a
person that the act or omission complained of is:
(1) an act or omission of that person
in furtherance of the person's right of petition or free speech under the
Constitution of the United States or the Constitution of the State of Indiana in
connection with a public issue; and
(2) an act or omission taken in good
faith and with a reasonable basis in law and fact.

IC 34-7-7-6
Discovery; stay pending motion to dismiss

Sec. 6. All discovery proceedings in the action are
stayed upon the filing of a motion to dismiss made under this chapter, except
for discovery relevant to the motion.

Sec. 7. A prevailing defendant on a motion to
dismiss made under this chapter is entitled to recover reasonable attorney's
fees and costs.

In summary, concerned Boone County citizens who criticize their public
servants do not need to fear (1) being successfully sued by public officials for
libel and slander and (2) having to bear the cost of a legal defense against a
lawsuit filed by a public official alleging libel or slander. Thin-skinned
public officials who want to stifle public criticism will need to resort to
tactics other than the threat of libel and slander lawsuits.